In April the Ministry of Justice submitted a draft amending the Spanish Penal Code to the Council of State (an advisory council). The reasons behind the new draft included the need to complete and improve the framework of criminal liability of companies and to define the concept of "due control", which was introduced in the 2010 amendment.
The 2010 amendment raised criticism due to the lack of references to the role of corporate compliance programs and the introduction of the objective liability of companies for the commission of selected crimes (including bribery) by their legal representatives or directors. In response to these concerns, the new draft states that a company may avoid criminal liability if its management body has adopted and effectively put into effect, before the commission of the crime, "the most suitable measures of vigilance and control to prevent the commission of crimes." In other words, if this draft is approved by the Spanish Parliament, companies may avoid criminal liability if they show they had an effective, robust compliance program in place. However, this will not be sufficient to avoid liability; the draft also requires that companies (a) create a body or department with autonomous powers of initiative and control (i.e., a compliance officer or department) that monitors their compliance program; (b) have a whistleblowing line; and (c) put in place a system to sanction violations of the compliance program.
The draft lists the elements that a compliance program must have and exempts smaller companies from having a compliance department (in such cases, the Board or another management body will be responsible for monitoring the compliance program).
The draft goes further than anticipated by commentators and, as with the UK Bribery Act, it criminalises the omission by legal representatives and directors of the duty to adopt of the measures of vigilance and control to avoid the conduct or omissions that may constitute a crime pursuant to the Penal Code.
If approved, the program is set to be a major breakthrough in the area of corporate compliance in Spain.